Humber Environmental Action Group v. Canada (Minister of Fisheries and Oceans Coast Guard), 2002 FCT 421

Date: 20020412

Docket: T-56-01

Neutral citation: 2002 FCT 421

Ottawa, Ontario, this 12th day of April, 2002

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                     HUMBER ENVIRONMENTAL ACTION GROUP

                                                                                                                                                       Applicant

                                                                              - and -

MINISTER OF FISHERIES AND OCEANS COAST GUARD

Respondent

- and -

CORNER BROOK PULP AND PAPER LIMITED

Intervenor

REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                 This is an application for mandamus to require the Minister of Fisheries and Oceans to enforce the Navigable Waters Protection Act, R.S.C. 1985, c. N-22 ("NWPA"), and in particular, order the intervenor to make application for retroactive approval pursuant to subsection 6(4) of the NWPA. This is also an application for a declaration that, by allegedly failing to enforce the NWPA, the Minister of Fisheries and Oceans is in violation of his duties under the NWPA.

Background

[2]                 The applicant is a local environmental group based in Corner Brook, Newfoundland.

[3]                 The respondent, the Minister of Fisheries and Oceans (the "Minister") agrees that the respondent Minister is responsible for, inter alia, the administration of the NWPA.

[4]                 Corner Brook Pulp and Paper Limited ("CBPP") is an intervenor in this application. CBPP owns a newsprint mill located in Corner Brook and is engaged in forestry operations in an area known as the Main River watershed area. CBPP has allegedly built at least eight bridges in the Main River watershed area without approval under the NWPA. It is a contentious issue in this proceeding as to whether any of the eight bridges are over navigable waters such that the NWPA applies.

Applicant's Submission

[5]                 The applicant admits that the reason for bringing the application is to trigger the environmental assessment process that is necessary before approval can be granted under the NWPA.

[6]                 The applicant submits that pursuant to section 5 of the NWPA, any work built or placed over navigable waters must be approved by the respondent.

[7]                 The applicant contends that at least two and as many as eight bridges have been constructed over navigable waters in the Main River watershed by CBPP for which approval by the respondent was not granted.

[8]                 The applicant submits that pursuant to subsection 6(4) of the NWPA, the Minister may approve a work, such as a bridge, retroactively, subject to compliance with section 9 of the Act.

[9]                 The applicant submits that the declaration by the intervenor that the NWPA is ultra vires Parliament is not available to the intervenor.

[10]            The applicant submits that the issues in this application for judicial review are narrow. They are:

1.          Did the Fisheries Minister fail to perform his statutory duty?

2.          If so, is the applicant due a declaratory remedy?

Respondent's Submissions

[11]            The respondent submits that mandamus is not available to require a Minister to do actions which are merely permissive under the Act. The respondent submits that the Minister is not in violation of his duties under the NWPA and so no declaration should be made to that effect.

Intervenor's Submissions

[12]            The intervenor submits that the NWPA should not be read as applying to waters capable of limited recreational use on a seasonal basis, as such waters are not "navigable" as that term is used in the Act.

[13]            The intervenor agrees with the submissions of the respondent with respect to the issues of mandamus and the declaration.

[14]            The intervenor directs the Court's attention to the following excerpt from the judgment of MacKay J. in International Minerals & Chemicals Corp. (Canada) v.Canada (Minister of Transport), 58 F.T.R. 302 at paragraph 29:

The fact that a body of water will carry a canoe or other vessel is not in itself sufficient as a basis for considering the waters navigable and subject to regulation under the Act.

[15]            The intervenor submits that occasional usage by recreational vessels during periods of high water does not make waters navigable, and that such would extend the concept of navigability beyond Parliament's powers under subsection 91(10) of the Constitution Act, 1867, (U.K.) 30 & 31 Victoria, c. 3, reprinted in R.S.C. 1985, App. II, No. 5.

[16]            Issues

1.          Should an order of mandamus issue requiring the respondent to enforce the NWPA and to issue an order requiring the CBPP to make an application for retroactive approval pursuant to subsection 6(4) of the NWPA?

2.          Should a declaration issue declaring that the respondent is in violation of the NWPA by not requiring the CBPP to obtain approval pursuant to the NWPA?

Relevant Statutory Provisions, Regulations and Rules

[17]            The following definitions to be applied throughout the NWPA appear in section 2:

[18]            The definition of "work" that applies to the relevant portion of the NWPA is found in section 3 as follows:

[19]            In section 5 of the NWPA, the general requirement for Ministerial approval appears as follows:

[20]            In section 6 of the NWPA, the remedial orders open to the Minister in respect of unauthorized works is set out as follows:

[21]            The deposit and notice requirement is set out in section 9 of the NWPA as follows:

[22]            Subsection 91(10) of the Constitution Act, 1867, supra states:

Analysis and Decision

[23]            At the commencement of the hearing, the parties agreed that the name of the respondent be amended to read only the "Minister of Fisheries and Oceans".

[24]            Issue 1

Should an order of mandamus issue requiring the respondent to enforce the NWPA and to issue an order requiring the CBPP to make an application for retroactive approval pursuant to subsection 6(4) of the NWPA?

In Apotex Inc. v. Canada (Attorney General) (C.A.) [1994] 1 F.C. 742 at pages 766 to 769, the Court of Appeal outlined the following principles as being applicable to the granting of orders in the nature of mandamus:

(1) Mandamus- The Principles

Several principal requirements must be satisfied before mandamus will issue. The following general framework finds support in the extant jurisprudence of this Court (see generally O'Grady v. Whyte, [1983] 1 F.C. 719 (C.A.), at pages 722-723, citing Karavos v. Toronto & Gillies, [1948] 3 D.L.R. 294 (Ont. C.A.), at page 297; and Mensinger v. Canada (Minister of Employment and Immigration), [1987] 1 F.C. 59 (T.D.), at page 66.

1. There must be a public legal duty to act:

. . .

2. The duty must be owed to the applicant:

. . .

3. There is a clear right to performance of that duty, in particular:

(a) the applicant has satisfied all conditions precedent giving rise to the duty:

. . .

(b) There was (i) a prior demand for performance of the duty; (ii) a reasonable time to comply with the demand unless refused outright; and (iii) a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay;

. . .

4. Where the duty sought to be enforced is discretionary, the following rules apply:

(a) in exercising a discretion, the decision-maker must not act in a manner which can be characterized as "unfair", "oppressive" or demonstrate "flagrant impropriety" or "bad faith";

(b) mandamusis unavailable if the decision-maker's discretion is characterized as being "unqualified", "absolute", "permissive" or "unfettered";

(c) in the exercise of a "fettered" discretion, the decision-maker must act upon "relevant", as opposed to "irrelevant", considerations:

(d) mandamusis unavailable to compel the exercise of a "fettered discretion" in a particular way; and

(e) mandamusis only available when the decision-maker's discretion is "spent", i.e., the applicant has a vested right to the performance of the duty.

. . .

5. No other adequate remedy is available to the applicant:

. . .

6. The order sought will be of some practical value or effect:

. . .

7. The Court in the exercise of its discretion finds no equitable bar to the relief sought:

. . .

8. On a "balance of convenience" an order in the nature of mandamus should (or should not) issue.

. . .

[25]            It is clear from the jurisprudence cited above that there must be public legal duty to act imposed on the respondent. As well, the applicant must have satisfied all the conditions precedent for the issue of an order in the nature of mandamus. These conditions precedent are:

1.          Was there a prior demand for performance of the duty?

2.          Was there a reasonable time to comply with the demand unless refused immediately?

3.          Was there a subsequent refusal either expressed or implied (example, unreasonable delay)?

[26]            With respect to the existence of a public legal duty, a perusal of subsection 5(1) of the NWPA established that a duty on the part of the respondent Minister, if any duty does exist, would only come into play if any of the bridges in question were built across any navigable water. It would now be in order to examine the evidence with respect to navigability.

[27]            The affidavit of Robert Diamond states in part as follows:

5.              Between Kilometres 29 and 30 of the access road, we observed a new steel-framed bridge, with concrete abutments and a wooden deck built across a stream which appeared to us to be navigable by canoe or other craft. The co-ordinates for this bridge are N 49 48.4/W 57/6.8'.

6.              Further along the road we took pictures and videos of another bridge, over the stream that runs into Eagle Mountain Pond. This bridge is at N 49 49.8/W 57 17.3'.

7.              Another, larger, bridge crosses Eagle Mountain River, which is navigable by canoe or other craft. We also took pictures and videos of this bridge, which is at N 49 57.4'/W 57 17.7'.

8.              Approximately 3.5 km beyond Eagle Mountain Bridge, another bridge crosses a major tributary of the Main River. This bridge, too, had concrete abutments, a steel frame and wooden deck, and is at N 49 51.9'/W 57 17.4'. At this site there was evidence of heavy equipment travelling directly through the stream.

[28]            As stated earlier, the only time that subsection 5(1) of NWPA imposes a duty on the Minister, with respect to a bridge, is when that bridge spans navigable water. In Eastmain Band v. Canada (Federal Administrator) (C.A.) [1993] 1 F.C. 501, the Federal Court of Appeal stated at paragraphs 87 to 90:

However, in Oldman River, the parties had acknowledged that the Oldman River was in fact navigable (at page 54). The navigability of a river is an elementary condition for this Act to apply, and in the case at bar the appellant and Hydro-Quebec vigorously dispute the navigability of the river.

The navigability of a river is a question of fact and of law. The Court cannot assume that it is navigable, [page538] and must be in a position to conclude from the evidence submitted that it is in fact navigable (Bell v. Quebec (Corporation of) (1879-80), 5 App. Cas. 84 (P.C.) at page 93; Sim E. Bak v. Ang Yong Huat, [1923] A.C. 429 (P.C.) at page 433; Attorney General of Quebec v. Fraser (1906), 37 S.C.R. 577, at page 596, confd sub nomonine Wyatt v. Attorney-General of Quebec, [1911] A.C. 489 (P.C.); G. V. La Forest and Associates, Water Law in Canada -- The Atlantic Provinces, Regional Economic Expansion, 1973, at page 180; G. Lord, Le Droit québécois de l'eau, Centre de recherche en droit public, Universite de Montréal, Éditeur officiel du Québec, 1977, at page 61).

In this case, the Aboriginal parties were content with vague statements in the sworn declarations which they entered into evidence, which statements were more in the nature of statements of principle and conclusions of law than of precise and useful narratives of fact on which the Court could base a finding. The Court knows nothing of the characteristics of the Eastmain River, either of its general course or of the area where the dam will be constructed. The fact that it is used as a border on geographic maps does not establish that it is navigable. The assertion that it has been used as a mode of transportation by Aboriginals is too general and too isolated for the Court to act on it.

The arguments of the aboriginal parties run up against Rule 412(2) of the Rules of this Court [Federal Court Rules, C.R.C., c. 663], which provides that "Raising a question of law or an express assertion of a conclusion of law -- such as an assertion of title to property -- shall not be accepted as a substitute for a statement of material facts on which the conclusion of law is based." (See Bertram S. Miller Ltd. v. R., [1986] 3 F.C. 291 (C.A.); Caterpillar Tractor Co. v. Babcock Allatt Limited, [1983] 1 F.C. 487 (T.D.).) To assert that the waters are navigable or that the dam will affect navigable waters is, it seems to me, to assert a legal consequence.

And at paragraph 93:

I therefore conclude that the record as it stands does not allow the Court to conclude that the primary condition for the Navigable Waters Protection Act, supra, to apply, that is, the navigability of the Eastmain River, has been established. The Minister of Transport could not exercise any decision-making power which would trigger the application of the Order before being persuaded of the navigability of the watercourse.

[29]            I have reviewed the affidavit evidence of Mr. Diamond and Mr. Elkins and that evidence does not provide me with a basis to say that any of the waters in question are navigable. There are only general statements such as "appeared to us to be navigable by canoe or other craft" and "which is navigable by canoe or other craft". There is also reference in the affidavit evidence of Mr. Elkins to the effect that "water flow in this brook is greatly impeded by rocks and boulders". If the waters cannot be determined to be navigable, then subsection 5(1) of the NWPA does not apply and there is no authority for the respondent to act.

[30]            As I have concluded that the evidence before me on this application does not show that the waters in question are navigable waters within the meaning of the NWPA, I also conclude that it has not been shown on this application that the respondent was under any duty to act with respect to the bridges in question. Accordingly, I am not prepared to grant an order in the nature of mandamus.

[31]            I would also refuse to grant the order in the nature of mandamus on the basis that no prior demand was made on the respondent by the applicant. The letter to Wayne Follett of Canadian Coast Guard dated July 4, 2000 cannot be considered as a demand. The letter only asks whether the Department of Fisheries and Oceans ("DFO") "will request (or has it requested) application for a retroactive permit . . ." and "will DFO be carrying out a screening under the Canadian Environmental Assessment Act?"

[32]            Issue 2

Should a declaration issue declaring that the respondent is in violation of the Act by not requiring the CBPP to obtain approval pursuant to that Act?

In order to issue the declaration requested by the applicant, I would have to be satisfied that the respondent was in violation of the NWPA. As I am not persuaded by the evidence before me that the bridges in question are over "navigable waters", I am unable to issue the declaration requested.

[33]            The application is therefore dismissed with costs to the respondent and intervenor.

ORDER

[34]            IT IS ORDERED that by consent of the parties, the name of the respondent be amended to read the Minister of Fisheries and Oceans.

[35]            AND IT IS ORDERED that the application is dismissed with costs to the respondent and intervenor.

                                                                                   "John A. O'Keefe"               

                                                                                                      J.F.C.C.                      

Ottawa, Ontario

April 12, 2002